In Part I of this series, I pointed out that DOJ uses the media as a tool to punish defendants. It publicizes indictments, without equally publicizing acquittals and dismissals. This post is the second in a series exploring how defense lawyers are fighting back against this trend.

In February 2015, New York State assemblyman Sheldon Silver was indicted for bribery and honest services fraud. The defense in that case, however, filed an interesting motion to dismiss the indictment. Although the motion ultimately failed, it is a helpful roadmap for defense attorneys considering how to fight back against inflammatory public statements by prosecutors.

The Timeline

The timeline in the Silver case is critical:

On January 22, 2015, the government filed a 35-page criminal complaint against Mr. Silver. (A complaint does not come from a grand jury; it’s a document drafted entirely by the government with no oversight by any independent body.)

On January 22, 2015, the SDNY issued a press release about the charges.

On January 22, 2015, U.S. Attorney Preet Bharara held a press conference about the charges.

On January 23, 2015, Mr. Bharara spoke at New York Law School about the charges.

On February 10, 2015, Mr. Bharara gave an interview to MSNBC about the charges.

On February 19, 2015, the grand jury indicted Mr. Silver.

The Complaint

The criminal complaint alleged that fees that Mr. Silver earned from two law firms were illegal bribes and kickbacks. It contended that these payments violated the Hobbs Act and the federal honest services statute.

The government had agreed with Mr. Silver’s defense counsel that he could voluntarily surrender and that the complaint will be kept under seal until he was formally arrested. But six hours before his arrest on January 22, the media reported on Mr. Silver’s imminent arrest and described the charges against him.

The reporters cited “law-enforcement sources” for the information about the charges. The first outlet to break the story was the New York Daily News. It was then picked up by several other media outlets overnight. So, on the morning of Mr. Silver’s arrest on January 22, the media frenzy had already begun. When he reported to the courthouse for his arraignment, he faced a wall of reporters ready to take his picture and report on his arrest.

I’m not going to bury the lede . Mr. Silver was ultimately convicted of these charges in November 2015, and sentenced to 12 years in prison. The case is currently on appeal based on the Supreme Court’s ruling in United States v. McDonnell.

The Public Statements

Let’s look at the statements made by the government about the charges against Mr. Silver.

First, the U.S. Attorney held a press conference at which he announced the charges against Mr. Silver. He didn’t simply describe the alleged facts or define the legal charges against Mr. Silver. Instead, he offered his personal views of the case in the most inflammatory way possible.

Here are a few quotes from the press conference:

How could Speaker Silver, one of the most powerful man in all of New York, earn millions of dollars in outside income without deeply compromising his ability to honestly serve his constituents? Today we provide the answer. He didn’t. As alleged, Silver corruptly used his law license and took advantage of lax outside income rules as a cover to secretly pocket millions of dollars through his official position.

As alleged, Speaker Silver never did any actual legal work. He simply sat back and collected millions of dollars by cashing in on his public office and his political influence.

The U.S. Attorney then identified Mr. Silver as the prime example of a corrupt culture in the New York state government:

As today’s charges make clear, the show-me-the-money culture of Albany has been perpetuated and promoted at the very top of the political food chain. And as the charges also show, the greedy art of secret self-reward was practiced with particular cleverness and cynicism by the Speaker himself.

Not surprisingly the media picked up the U.S. Attorney’s comments and reported them widely.

Second, the SDNY issued a press release the same day as Mr. Silver’s arrest. It contained a lengthy recitation of the allegations and includes quotes by Mr. Bharara from his press conference.

The U.S. Attorney didn’t stop there. The very next day, on January 23, 2015, he spoke at a breakfast sponsored by New York Law School. He continued to talk about Mr. Silver’s charges. He described Mr. Silver as “the very core of what ails Albany,” and he called Albany “a cauldron of corruption.” The U.S. Attorney then encouraged the audience (and everyone who would later read his comments) to be “angry.” He went on to say “[w]hen so many of their leaders can be bought for a few thousand dollars they should think about getting angry.” (A little Trump-like, eh? Funny how he’s sticking around for the new administration.)

Two weeks later, U.S. Attorney gave an interview to MSNBC. He was asked about his prosecution of Mr. Silver. And here’s what he said:

When you see somebody who’s been charged with (and we convicted many, many people before this case) – and you see somebody who is basically sold his office to line his pockets and compromises his integrity and ethics with respect to how to make decisions on all these those issues I mentioned that affect people’s lives, that’s a big problem. And it’s a big problem for democracy.

On February 19, 2015, just as all of these public statements and the media frenzy to follow them continue, the grand jury returned an indictment of Mr. Silver.

The Motion to Dismiss

Having laid out the facts, Mr. Silver’s argument was fairly straightforward. It first cited the numerous rules that Mr. Bharara arguably violated in his public statements.

For example, SDNY Local Criminal Rule 23.1(b) prohibits prosecutors from making public comments when there is “a substantial likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the administration of justice.” The local rules also prohibit expressing any opinion about the accused’s guilt.

The U.S. Attorney’s Manual draws a similar distinction. It allows disclosure of “the substance or text of the charge” and “should include only incontrovertible, factual matters, should not include subjective observations.” The Department’s regulations prohibit a prosecutor from expressing “any opinion as to the accused guilt.”

The rules of ethics in New York are the same, preventing all lawyers from making comments to the media that have “a substantial likelihood of materially prejudicing and adjudicative proceeding.”

It’s worth noting that none of these rules have an exception for the U.S. Attorney for the Southern District of New York.

After laying out the rules, Mr. Silver then argued that the U.S. Attorney’s comments did not comply with them. According to Mr. Silver, Mr. Bharara “delivered lengthy attacks on Mr. Silver’s perceived crimes, in highly inflammatory language.” He went on to argue that “those are the sorts of impassioned expectations suited to a Zuccotti Park soapbox, not a prosecutor’s press conference.” (Damn, that’s a great sentence.)

The Possible Remedy

Mr. Silver’s remedy requested was simple but drastic: dismissal of the indictment. The district courts have authority “to dismiss an indictment because of misconduct before the grand jury.” United States v. Williams, 504 US 36, 46 (1992). The court can do so to eliminate prejudice to the defendant or to deter widespread continuous official misconduct.

Mr. Silver contended that both circumstances were present here.

First, he argued that the U.S. Attorney’s violations compromise the fairness of the grand jury process. The statements should be presumed to cause prejudice to Mr. Silver. Also Mr. Bharara made sure that his comments were broadcasted “far and wide.” Let’s just say that giving an interview to MSNBC is not exactly keeping a low profile.

Second, Mr. Silver argued that there was a pattern of misconduct in this particular U.S. Attorney’s office. He pointed to other cases in the district where judges had expressed concerns about the government’s press tactics.

In the alternative, Mr. Silver asked the court to poll the grand jurors see whether or not the media stories had any improper influence on their decision. He also asked the court to order disclosure of the grand jury transcripts.

The Court’s Decision

The court (Judge Caproni) denied the motion.

The first paragraph of the order was encouraging for the defense:

In this case, the U.S. Attorney, while castigating politicians in Albany for playing fast and loose with the ethical rules that govern their conduct, strayed so close to the edge of the rules governing his own conduct that Defendant Sheldon Silver has a non-frivolous argument that he fell over the edge to the Defendant’s prejudice.

The court agreed that Mr. Bharara’s press conference “could reasonably have been interpreted to reflect the U.S. Attorney’s personal views as to Silver’s character or guilt with respect t0 the charges filed against him.”

It defined the question for the court as “whether the U.S. Attorney’s comments were sufficiently prejudicial to overcome the presumption of regularity accorded to grand jury proceedings and to warrant the extreme sanction of dismissing the Indictment, or in the alternative, polling of the grand jurors or reviewing the grand jury minutes.”

The court concluded, however, that there was no basis to dismiss the indictment. It did not credit the defendant’s argument that the leaking of the complaint to the press before Mr. Silver’s arrest caused serious prejudice.

The court did not think highly of the government’s arguments. It first rejected the government’s argument that simply using the words “alleged” was sufficient to contain the prejudicial effect of the U.S. Attorney’s comments.

In particular, the Court is troubled by remarks by the U.S. Attorney that appeared to bundle together unproven allegations regarding the Defendant with broader commentary on corruption and a lack of transparency in certain aspects of New York State politics.

Judge Caproni also rejected the government’s argument that the timing of Mr. Bharara’s speech at New York Law School was “merely coincidental”–in fact, she called this contention “pure sophistry.”

In the end, though, the court decided that Mr. Silver had not shown any “substantial influence” on the grand jury’s decision to indict him. There is a body of precedent that negative publicity, standing alone, is not sufficient to find prejudice. Unfortunately for Mr. Silver, there are no cases dismissing an indictment based on pre-indictment publicity. (Of course, someone has to be the first to make precedent–it is a cop-out to conclude that because no court has done it before, the court will not do it here.)

The court also rejected Mr. Silver’s argument that there was a pattern of misconduct by the U.S. Attorney’s Office. Mr. Silver simply hadn’t shown enough of a pattern or that it was sufficiently widespread.

Fairly briefly, the court refused to permit any polling of the grand jurors. Most of the cases cited by Mr. Silver involved a petit jury, not a grand jury, with its specialized secrecy rules. Simply put, the court found that Mr. Silver had made only a “speculative claim that the grand jurors may have been prejudiced by the U.S. Attorney’s comments” and this “falls short of establishing a ‘particularized need’ that outweighs the presumption of secrecy.”

Even a Loss Is Helpful

This was a loss for the defense, no question. But this loss may help other defendants down the road. At a minimum, it puts the U.S. Attorney on notice that his comments crossed the line (even if they did not result in dismissal). The next defendant to make this argument can point to this case as why the U.S. Attorney had been warned and to show that similar statements were intended to cause prejudice given Judge Caproni’s harsh words for Mr. Bharara.

Judge Caproni criticized the U.S. Attorney’s inflammatory Twitter statements as well as his statements in the press conference about Mr. Silver’s guilt. She also left open the possibility that these comments violated an ethical rule. (There’s no indication that anyone has filed a bar complaint against Mr. Bharara, but those complaints are confidential.) These are all strong signals that the SDNY’s media strategy is not without possible repercussions.

If this particular U.S. Attorney makes similar comments in the future, I can imagine another judge looking to Judge Caproni’s opinion for guidance. If the same conduct happens again, this opinion will help create the required pattern of misconduct. This opinion may be a shot across the bow.

So, thanks to Mr. Silver’s legal team at MoloLamken for the excellent brief. It may have been a short term loss for Mr. Silver, but we can hope that it will either lead to fewer “trials by press” by Mr. Bharara or set up the next defendant for success.